ALDA Attacks Tenure for Clinicians

The ALDA deans' comments appear to deal with tenure in an even-handed way, while very cleverly setting up their two whipping-boys (clnicians and library directors) to be de-tenured at the first opportunity leaving everybody else in their tenured situation. Their comments read, in part:

Except in extraordinary circumstances, a dean shall also hold Appointment as a member of the faculty with tenure.

We see no reason whatsoever why the conditions of employment of the dean of a law school should be prescribed as an accreditation standard. The dean is the executive officer of the law school; in a university setting the dean will typically be accountable to the president or chancellor, while at a free-standing school he or she will report to the governing board. In either case, the dean is expected to diligently carry out the policies and manage the affairs of the law school. A distinguished legal scholar certainly should have academic rank consonant with his other learning. But an outstanding dean need not be a legal scholar, just as an exceptional university president need not demonstrate great scholarship. The choice of a dean for the skills and talents a particular law school needs at a particular moment in time should not be impeded by having to fit the dean into an academic tenure system. Nor should his or her accountability be diminished by overlaying the artificial cloak of tenure.

This paragraph is so disingenuous that butter wouldn't melt in their mouths! Of course the dean should have whatever acadmeic rank would be consonant with his other learning. And of course the schools (we will see in the next block quote) can offer whatever incentives will keep their faculties happy to stay long-term. Hmmmmm.

Standard 405(a) requires that "A law school shall establish and maintain conditions adequate to attract and retain a competent faculty." With respect to faculty of any type, we believe that there is no reason to mandate tenure or other terms and conditions of employment. Institutions should be held accountable for the quality of their programs, not the means by which they achieve that quality. A good case can be made for some standards as instruments to guaranteeing quality, if only to take pressure off various measurements of quality. If a Standard required that only a fraction of the faculty possess law degrees, for example, one could make a good case for a likely impact on the quality of education. But tenure is unlikely to qualify on that count. Certainly, many institutions will decide on their own to provide tenure or other favorable terms and conditions of employment to their faculty, whether they be traditional faculty, clinical faculty, or instructors in legal writing. That is a decision that should not be mandated by the accrediting agency, but should be left to the judgment of the institution as the best way to provide quality legal education. Generally, we believe that Standard 405 should simply require that a law school engage a faculty that provides an effective legal education and that protects academic freedom.

Requiring tenure or tenure-like employment for clinical faculty is similarly faulty. Standard 405(c) provides in pertinent part:
A law school shall afford to full-time clinical faculty members a form of security of position reasonably similar to tenure, and non-compensatory perquisites reasonably similar to those provided other full-time faculty members. [1] * * * [T]his standard does not preclude a limited number of fixed, short-term appointments in a clinical program predominantly staffed by full-time faculty members, or in an experimental program of limited duration.

They just really HATE to have to give clinical faculty long-term appointments or tenure. I don't get it. Why is it so different from substantive law faculty? And it can go on and on from their comments in this vein. My friends in Clinic tell me that have been tracking this group for years, and this is only the latest attack.

This is like having just finished reading Wicked and just rethinking the Wizard of Oz for me! The ALDA deans go on, attacking clinicians. They want to be able to toss them out the door if they decide to change the clinic. Do they think they ought to be able to throw out the specialty law teacher if they change the substantive law, too? Quite probably. Watch out, folks! Here is some more vintage ALDA:

The irony is that in the same breath the ABA will commend an institution for the excellence of its clinical program and yet cite it as out of compliance with Standard 405(c) - and therefore risk serious sanction - entirely because clinical faculty are engaged under terms of employment which do not necessarily result in the granting of terms euphemistically defined as "reasonably similar to tenure." Indeed, it is entirely possible that the ABA's constraints on the terms and conditions of clinical appointments will result in fewer such appointments, as schools hesitate to create new programs and positions that lack necessary flexibility.

The ABA has professed that the purpose of Standard 405(c) is "to ensure that law schools can attract and retain quality full-time clinical faculty and thereby strengthen the clinical component of the law school curriculum." [2] There is, however, no evidence that law schools are having difficulty attracting or retaining highly qualified clinical instructors, or that the restrictions imposed by Standard 405(c) would improve the quality of clinics. To the contrary, the quality of clinics requires law schools to have maximum flexibility in developing the employment strategies most appropriate to their circumstances.

While innovation is a necessary attribute of all parts of any successful program of legal education, clinical programs are particularly sensitive to changing community needs and priorities, as well as serving as targets of opportunity in responding to emerging areas of practice. Maintaining relevance is a critical element of a successful clinical program, and flexibility in developing and modifying these programs is essential to their success both as pedagogical tools and as important community legal services. Inasmuch as this necessarily demands flexibility in the employment of clinical faculty, it is necessary to create terms and conditions of employment that are specifically designed to meet particular circumstances to secure the services of the most qualified individuals who are able to provide the best clinical experience. Without a reasonable degree of flexibility, law schools, including those most focused on quality, are likely to experiment more cautiously, or not at all, in developing new clinical opportunities, in order to avoid locking themselves into commitments that are not in the long-term interests of the school
or of legal education in general. Standard 405(c) is an unnecessary intrusion into the economic relationship amongst the law schools and those who run their clinical programs. [3]